Struggling for the Rule of Law: The Pakistani Lawyers’ Movement

Daud Munir

(Daud Munir is a doctoral candidate in politics at Princeton University.)

Lawyers protest against the establishment of anti-terrorist courts headed by civil-military judges, February 2, 2002, Lahore. (K. M. Chaudary/AP Photo)

In March 2007, when President (and General) Pervez Musharraf suspended Supreme Court Chief Justice Iftikhar Chaudhry, Pakistani lawyers took to the streets in large numbers. It was a dangerous street where they were met with batons, barbed wire, tear gas, bullets and bombs. If their immediate demand was Chaudhry’s return to the bench, the incipient goal of their movement was restoration and respect for the rule of law. Over the last two years, protesting lawyers fundamentally transformed the political landscape in Pakistan.

Lawyers—at least in their capacity as lawyers—rarely enter the fray of contentious politics by employing disruptive techniques to press for changes in government policy. While lawyers are agents and advocates of political liberalism and the rule of law in most countries, their favored arena of contestation usually has been courts, and their preferred tactics of resistance have been writs and petitions. If we define a “lawyers’ movement” as a coherent nationwide struggle by legal professionals, sustained over time and fought primarily in the streets, Pakistan would emerge as the only case.

The lawyers’ bold challenge to Musharraf presented a unique historical opportunity for meaningful political reform in Pakistan. It certainly presented a counter-image of the idea that Pakistan is a “failed state,” as some US policymakers have claimed, and a contrast to the parallel undemocratic impulse in Pakistan’s politics, led by militant movements of tribal Pashtuns seeking to install a radical version of Islam in the country’s northwest regions. The broader effects of the lawyers’ struggle depend on whether this indigenous democratic impulse can flourish and endure in the post-Musharraf era. The problem is that while western policymakers are ready to extend billions of dollars in military aid to subdue the extremist impulse, they seem unwilling to engage with—or even to adequately acknowledge—the secular, reformist impulse in Pakistani society that is represented by the lawyers’ movement.

A Tale of Two Judges

Following Pakistan’s creation as an independent state in 1947, the project of establishing constitutional governance had an unpromising beginning. In 1954, the Constituent Assembly finally agreed on the governing legal framework. Later that year, as legal experts were busy drafting the text of the constitution, Governor-General Ghulam Muhammad dissolved the Assembly, silencing what he referred to as its “parliamentary bickering.” Proclaiming in an emergency proclamation that the Assembly had “lost the confidence of the people,” what really troubled Muhammad was the imminent curtailment of his powers through new legislation.

The executive enlisted the support of the military in its bid to preserve its power. In a breach of rules barring members of the military from holding political office, General Ayub Khan, the army chief, was appointed as a minister in the newly formed cabinet. This extra-constitutional action formally paved the way for the military’s entry into Pakistan’s politics.

How did the judiciary respond? The Chief Court of Sindh accepted a petition submitted by the president of the Assembly and invalidated the actions of the governor-general. On appeal, however, the Federal Court upheld the legality of the Assembly’s dissolution. A constitutional crisis ensued, which the court resolved by relying on the “doctrine of necessity.” According to this controversial principle, extra-constitutional actions can be legally justified under special circumstances. The man behind this legal maneuver was Chief Justice Muhammad Munir, a brilliant legal mind. His majority opinion which, in essence, validated Pakistan’s first extra-constitutional coup, was a skillful attempt at bending the law in support of the executive. Munir’s ruling endorsing the usurpation of power would prove costly for Pakistan.

In 1958, when General Khan suspended the constitution and imposed the first martial law, Justice Munir authored the leading judgment validating this military coup d’état. This time the legal maneuver involved mislabeling the coup a “revolution” by invoking the speculative theory of “revolutionary legality” developed by the Austrian jurist Hans Kelsen. The court argued that since the “revolution” satisfied “the test of efficacy,” it could thereby be deemed legitimate. In other words, the success of the military coup d’état automatically furnished the justification for its legality.

The jurisprudence of the Munir court set the tone for constitutional reasoning in Pakistan. The doctrine of necessity, in particular, was used repeatedly to legitimate extralegal usurpations of power. Both Generals Zia ul-Haq’s and Pervez Musharraf’s military takeovers, in 1977 and 1999, respectively, were validated using this doctrine. One of the members of the bench who reviewed and endorsed the legality of Musharraf’s military coup d’état in May 2000 was Justice Iftikhar Chaudhry.

When Chaudhry became chief justice in 2005, however, his judicial philosophy underwent a fundamental metamorphosis. Rather than acting as an agent of the power elite, Chaudhry sought to become a guarantor of the fundamental rights of Pakistani citizens. Soon after being sworn in, he established a “human rights cell” in the Supreme Court. Through this forum, Chaudhry started accepting petitions from the public against infringements of constitutionally guaranteed rights. The cases taken up by the court incrementally tightened the noose of legality around the Musharraf regime.

In the first few cases, the court held local town officials accountable for failing to oversee and enforce safety regulations in construction projects. Decisions in another set of cases annulled the leases of two public parks that were handed over to private parties for the development of a mini-golf course and a parking complex. Next in line were cases against corrupt federal ministers involved in illegally controlling the prices of commodities. By successively implicating more powerful state officials, it seemed that Chaudhry was testing the regime’s willingness to tolerate his judicial activism.

There was a paradigmatic shift in the core function of Pakistan’s Supreme Court when decisions started going against senior members of the executive. One of these decisions directly challenged the administrative practices of Prime Minister Shaukat Aziz, who privatized Pakistan Steel Mills, one of the country’s largest public sector enterprises, generating considerable controversy. It was alleged that Aziz, who was also the chair of the Cabinet Committee on Privatization, had agreed to the sale of the corporation at an unduly low price to a consortium he favored. In a landmark judgment, the Chaudhry Court annulled the sale agreement on the grounds that the deal had been done in “indecent haste.”

Soon afterwards, the court shocked the military regime by taking up cases addressing “missing persons.” Under the pretext of the “war on terror,” Musharraf’s security apparatus had forcibly disappeared a large number of political opponents. In an astoundingly bold move, Chief Justice Chaudhry accepted a case involving 41 missing persons. The court upheld the right to due process for extrajudicially detained individuals and ordered the state agencies to produce them in court. This was an extraordinary contra-authoritarian step in the judicial history of Pakistan. Chaudhry’s activism generated immense respect among lawyers and the human rights community, and was widely reported in the burgeoning independent Pakistani media. Emboldened by the positive feedback, Chaudhry accepted another case involving over a hundred forced disappearances on March 8, 2007. The next day would prove fateful for both Chaudhry and the military regime in Pakistan.

Chaudhry’s Suspension

Lawyers of Lahore protest military rule, February 27, 2001, in Lahore. (K. M. Choudary/AP Photo)

Musharraf invited Chaudhry to his official residence. Dressed in military uniform and accompanied by the prime minster and intelligence chiefs, he sought to pressure the chief justice to resign. Chaudhry refused. An infuriated Musharraf forcibly detained Chaudhry for several hours and then suspended him through a presidential order with immediate effect. An acting chief justice was sworn in.

After Chaudhry’s suspension, bar associations in several parts of the country began protesting Musharraf’s action. Three days after the suspension, as the deposed chief justice left his residence to face the Supreme Court bench hearing his case, a police car was waiting to transport him. Chaudhry, however, believed that he was still the rightful chief justice of Pakistan—and certainly not a criminal—and so decided to walk to court rather than ride in the police car. At this point, the security forces pulled him by the hair and forced him into the car. Their actions were captured on film and widely circulated on news channels and reported in the print media.

The insult to one of the highest symbols of the legal profession galvanized even habitually apathetic lawyers. Wearing their black coats, lawyers took to the streets in protests across the country demanding Chaudhry’s reinstatement. Thus began the lawyers’ movement, which continued with a boycott of courts and ongoing demonstrations against the regime. Chaudhry traveled around the country, addressing bar associations in order to help keep the movement animated. The media played a critical role by giving live coverage to the events and by debating the legality of Musharraf’s action.

In July 2007, in the context of public opinion strongly mobilized in favor of the deposed chief justice, the Supreme Court passed a landmark judgment annulling the presidential order and restoring Chaudhry. This was the first judicial ruling in the country’s history directly challenging the action of a military dictator.

The Struggle Continued

The chief justice—restored to his post as a result of countrywide popular mobilization—felt emboldened to take up the case of Musharraf’s eligibility to run for reelection as president while in military uniform. Sensing an imminent court decision against the constitutionality of his bid for reelection, Musharraf imposed emergency rule in November 2007. He suspended sixty judges of the higher courts in Pakistan, including Chief Justice Chaudhry.

Over the next few months, Musharraf’s security apparatus launched an offensive against Pakistan’s civil society, with special vehemence directed at the rebellious legal community. Although many individuals were brutally attacked, the lawyers’ movement continued to press the government for the restoration of the judiciary. The boycott of courts and the climate of instability most likely contributed to a rift within the military over how best to respond and control the mobilization. It certainly was a factor in Musharraf’s decision to extend his hand to Benazir Bhutto, leader of the Pakistan Peoples Party (PPP), to stave the erosion of his own legitimacy. Under an agreement with Musharraf that granted her blanket immunity for pending corruption charges, Bhutto returned to Pakistan in October 2007. In the buildup to a January 2008 parliamentary election, Bhutto, the leading opposition candidate, was assassinated at a rally in Rawalpindi on December 27, 2007.

After being sworn in as president for another five years, Musharraf maintained his refusal to restore the deposed judges. In July 2008, the lawyers’ movement organized the first “long march.” Around 50,000 protesters from around the country converged on the capital. Given the erosion of his power during the last year and mounting opposition to his policies, Musharraf resigned in August.

A few weeks later, Asif Zardari, Bhutto’s widower and co-chair of the PPP, was elected president. One of his campaign promises was to restore the deposed judges. However, several months into his presidency Zardari not only refused to reinstate the judges, but appointed PPP loyalists as judges in higher courts, presumably motivated in part by a desire to curtail corruption cases against him.

The lawyers’ movement had not abated with the end of Musharraf’s rule, and new pressure was directed at Zardari to reinstate the judiciary. The lawyers organized a second long march in March 2009, in which opposition parties officially joined. This time, before the hundreds of thousands of protestors reached the capital, the prime minister announced the restoration of the deposed judges. Chief Justice Chaudhry once again resumed office on March 22, 2009.

Undermining Authoritarianism

Even though “Go Musharraf Go!” had been one of the main slogans of the lawyers, it would be erroneous to think that the movement’s goal was regime change. In retrospect, the single-issue clarity of the movement’s campaign to reinstate the deposed judges arguably made their activism so successful. But the lawyers’ struggle did prove to be a critical factor in undermining Musharraf’s military regime and forcing his resignation. Unlike most other transitions to democracy in which the principal agents of change have been a country’s political elites, in Pakistan it was mobilization by the legal community that paved the way.

To understand how middle class professionals could upend a military regime as powerful as Musharraf’s, it is important to specify the nature of the Pakistan lawyers’ movement. For one thing, it was not confined to any particular geographical region; lawyers from across the country were actively involved, with Lahore and Karachi registering the highest turnouts at protests. The movement was not dominated by any single ethnic or sectarian group, thus giving it a truly national complexion. And it was not a façade for political party activism, although parties occasionally participated—especially at key events. This movement was initiated, organized and sustained by Pakistani legal professionals who waged their struggle mainly in the streets.

Lawyers put their safety and freedom at risk, given Pakistan’s history of political violence and regime repression. Thousands were arrested, illegally detained, beaten up and tear-gassed. There were at least two violent events during which more than 50 died. The Musharraf regime had used the draconian Anti-Terrorism Act to detain several lawyers, and amended the Army Act of 1952 to allow civilians to be tried in military courts for vague offenses such as “giving statements conducive to public mischief.”

The erosion of regime legitimacy is rarely sufficient to oust a dictator. What is needed—and what the Pakistani lawyers’ movement provided—was the infliction of tangible costs. By acting as a judicial support network, lawyers propelled the regime into constitutional crises. In many countries, authoritarian regime destabilization is the result of an economic crisis. In Pakistan, the crisis of governability arose first in the legal realm. The mobilization of public opinion in support of the deposed judges, arguably, was critical in the decision of the Supreme Court to annul the presidential order. After the judiciary was restored, the lawyers pressed them to take up the case of Musharraf’s eligibility to run for reelection, propelling the regime into a second crisis.

Lawyers’ boycotts of normal court proceedings threatened the workings of the entire judicial system. The public did not blame the lawyers, but rather the regime, for the consequences of the boycott. And since the lawyers mobilized in the streets rather than merely staying home, they baited the regime, which responded with violent repression. This exacted immense reputational costs both at home and internationally, given the extensive live coverage of protest events by the media. The regime’s destruction of media company offices and passage of censorship laws backfired, further inflaming anti-regime sentiment. The regime also used tactics such as arranging counter-demonstrations by fake lawyers and organizing a national rally in support of Musharraf. Such obvious desperation both exacerbated and illustrated the regime’s loss of power.

Finally, the event that most forcefully proved the cost inflicted by the lawyers’ movement was the regime’s imposition of emergency rule. This was a clear instance of the diversion of the regime’s energies to fighting civil society rather than focusing on important policy issues or confronting the growing threat of Islamist militancy in Pakistan.

A New Vocabulary of Politics

Beyond achieving the restoration of the judges to the bench and eroding the jurisprudential foundations of authoritarianism, the lawyers’ movement has had a deeper structural impact on democratic politics in Pakistan. Historically, party politics has relied on three kinds of allegiances to mobilize people: ethnic, religious and clientelistic. Even a relatively populist leader like Zulfiqar Bhutto, who claimed to champion the dispossessed, offered (clientelistic) “bread, cloth and shelter.” Until the lawyers’ movement, no one had offered “rule of law” to the people.

The political dynamic between Pakistan’s political parties and the lawyers’ movement presents a fascinating example of the potential of civil society in newly democratizing countries. Rather than engaging in partisan politics, the lawyers chose to engage in direct mobilization through the bar. This professional autonomy prevented the movement from being subsumed or manipulated by party politics. Conversely, the political parties tried hard to forge an association with the lawyers’ movement, given its success at mobilization and broad-based legitimacy.

The lawyers’ movement became the principal conduit for democratic change in the political arena. Parties that sought to gain leverage by aligning with the movement had to pay the price of structuring their platforms according to lawyers’ demands for rule of law. The case of the PPP is illustrative. It initially appropriated the movement to gain access to the political space in Pakistan by promising to restore the judges. But after Zardari failed to honor this PPP campaign promise, the strong public opinion mobilized by the lawyers’ movement began adversely affecting his party. Realizing this, Nawaz Sharif’s Pakistan Muslim League threw its force behind the movement, gaining considerable legitimacy as a result.

The lawyers’ movement had an impact not only on traditionally clientelistic parties, but also on Islamist parties that historically have mobilized supporters for the implementation of shari‘a law in Pakistan. The Jamaat-e-Islami was one of the parties most actively engaged with the lawyers’ movement, despite the latter’s aim of strengthening the secular legal system in the country. (For Jamaat, siding with the lawyers was a means of expressing opposition to Musharraf.) As political parties appropriated the movement, they were forced to employ a variant of universalistic liberal legal rhetoric that cut across ethnic, religious or clientelistic claims.

Building the Rule of Law

In Pakistan, interludes of democratic rule have brought only nominal improvements in the lives of citizens. As in other emerging democracies, hopes that courts would protect citizens’ fundamental rights are often derailed when the judiciary proves unable or unwilling to check the power of the regime or elites. Recent events in Pakistan, however, provide an interesting case of courts’ efforts to protect rights and build the rule of law at the expense of power elites.

Support for domestic legal reform from multilateral and foreign institutions such as the World Bank, Asian Development Bank and USAID typically envisions a formalistic legal environment and espouses a model divorced from—or at least not tailored to—the social and political forces in the target country. The international record of trying to transplant a one-size-fits-all model of legal reform is unimpressive, not least because it ignores the fact that law is inherently and fundamentally political. The most successful examples of rule of law-building are found in countries where local actors and institutions direct the reforms in ways that accommodate local norms of legal legitimacy.

The two-year struggle of the legal community for upholding the rule of law in Pakistan can be thought of as a political project aimed at legal reform. In contrast to legal reform programs of multilateral institutions, this project was not implemented in a top-down manner. Rather, it was an indigenous project, deeply embedded in the country’s social and political context. Rather than focusing on strengthening the judicial machinery, the lawyers’ movement engaged in rule of law-supporting activism through street protests and court boycotts. In the end, it accomplished something that formalistic legal development by multilateral institutions arguably cannot: the widespread legitimacy of judicial institutions among the citizens of Pakistan.

Given this strong impulse for reform in Pakistan, it seems odd that the country has often been labeled as the “most dangerous place in the world” in the western press. This characterization builds on an exclusive focus on radical movements in Pakistan’s northwest. Given its scope and breadth, however, the lawyers’ movement is arguably more representative of the political aspirations of Pakistanis than is Talibanization. An exclusive focus on the latter, however, by the international community may tilt the balance in the opposite direction.

The Afghan Triangle: Kashmir, India, Pakistan

Graham Usher

(Graham Usher is a writer and journalist based in Pakistan and a contributing editor of Middle East Report.)

The Association of Parents of Disappeared Persons protesting in Srinagar, Indian-administered Kashmir. (Faheem Qadri)

The Pakistani army’s operation in the Swat Valley in northwest Pakistan is the most sustained in five years of selective counterinsurgency against the local Taliban. The toll already is immense: 1.9 million internally displaced, including tens of thousands housed in tents on parched plains; 15,000 soldiers battling 5,000 guerrillas; and more than a thousand dead, mainly militants according to available counts but also soldiers and of course civilians.

The war has not been confined to Swat. In revenge for losses there, the Pakistan Taliban has unleashed a torrent of attacks in Peshawar, Lahore, Islamabad and other cities, killing scores. “You know it’s serious this time: the scale of the army’s campaign confirms it. You fear the war is at your door,” said Sajjad Ali from Mardan, a city adjacent to Swat.

The war is the fruit of a failed peace process, denounced by the United States as an “abdication” that had allowed the Taliban to within 60 miles of Islamabad. In February, the provincial government had proffered a localized form of Islamic law in Swat in return for the Taliban disarming and recognizing “the writ of the state.” The insurgents observed their commitments only in the breach, which included the slaughter of their opponents. In May the army “reinvaded” Swat.

Pakistanis historically have been hostile to campaigns against the Taliban, casting them as “America’s war.” But not this time: The army, the civilian government and most Pakistanis, including the largest opposition party, support the Swat offensive. “The atrocities of the Swat Taliban galvanized public opinion,” says Maleeha Lodhi, a former ambassador to the US. “It produced a coincidence of military resolve, political consensus and strong public support. And because the US was not seen as calling the shots in any pronounced way, this helped the government pursue a very aggressive policy.”

The public support manifests as a spontaneous, generous solidarity. In cities like Mardan, Peshawar and Swabi, people have literally opened their homes to the refugees. In vast tent cities near the banks of the Indus, volunteers deliver food, clothes, utensils and shelter. The relief work, involving all parts of Pakistani civil society, is led by the Islamic charities.

One such charity is Jamaat-ud-Dawa (JuD). Last December the Pakistani government banned JuD and arrested its amir, Hafiz Saeed, following the JuD’s designation as a terrorist group by the United Nations. Saeed founded Lashkar-e-Tayaba (LeT), the Pakistani jihadi group that India alleges was behind the attack in Mumbai in November 2008. In Pakistan, it is widely assumed that JuD and LeT are one and the same organization. On June 2, the Lahore High Court ordered Saeed’s release on the grounds that the state had supplied “insufficient” evidence to warrant his detention. India responded by saying that the decision raised “serious doubts over Pakistan’s sincerity in acting with determination against terrorist groups and individuals operating from its territory.” India has since conditioned any return to peace negotiations with Pakistan on the latter taking action against LeT and other jihadi groups.

For the Obama administration—which has cast Taliban and al-Qaeda “sanctuaries” in Pakistani tribal areas bordering Afghanistan as the “single greatest threat” to America—the enigma is whether Pakistan’s military establishment is friend or foe in America’s war against Islamic militancy. “I’ve rarely seen in my years in Washington an issue so hotly disputed internally by experts and intelligence officials,” ceded Richard Holbrooke, President Obama’s point man for “Af-Pak,” when asked that question in February.

The dispute in Washington about how to perceive the Pakistani army runs along two colliding tracks. Track one says the army is a friend. Even before Swat, the Pakistani army had lost 1,000 men to Taliban and al-Qaeda guerillas in the tribal areas. Pakistan’s premier military intelligence agency, the Inter-Services Intelligence (ISI), had “rendered” more than 600 al-Qaeda suspects into CIA hands, including Khalid Sheikh Mohammed, alleged mastermind behind the September 11, 2001 attacks. Currently the Pakistani army is fighting the Taliban not only in Swat but also the tribal areas of Bajaur, Orakzai, Mohmand, Khyber and South Waziristan.

Kashmiri children watching cricket near an excavation site in Budgam, near Srinagar, Indian-administered Kashmir. (Faheem Qadri)

Track two says the army-ISI combination is a foe. It allows Afghan Taliban leader Mullah Omar and his Shura council free run in Pakistan’s Balochistan province from where they direct the insurgency in Afghanistan. It shelters Afghan Taliban commanders like Jalaluddin and Sirjuddin Haqqani in North Waziristan. And it supplies money, arms and training to jihadi groups fighting the Indian army in Indian-occupied Kashmir, including the “banned” LeT.

The two tracks collide because both, in part, are true. The army is combating the Pakistan Taliban and its jihadi allies in Swat and elsewhere, seeing their spread as a danger to Pakistan’s integrity as a state. One hundred and twenty thousand soldiers have been mobilized to fight them. But 250,000 remain rooted on the eastern border facing the Indian army, and primed by organizational formation, weaponry, ideology and ethos to a vision that defines India, not the Taliban or al-Qaeda, as the “strategic enemy.” That vision must change if Pakistan is to defeat the enemy at home.

Jockeying for Kashmir

For the last 61 years the fight has been fought, mostly, in and for Indian-occupied Kashmir (IoK): the territory Delhi and Islamabad have contested since the 1947 partition cleaved them into two states—and Kashmir into “Pakistani” and “Indian” parts. Sometimes (1947, 1965, 1971, 1999) the war has been hot. More often it has been waged via Pakistani proxies against a standing Indian military. Since 1989, it has been channeled through a low-intensity, Pakistan-backed separatist-Islamist insurgency that has killed 50,000 people and incurred an Indian military occupation three times the size of America’s in Iraq and three times as lethal.

Of all the jihadi groups the ISI nurtured in IoK, the LeT was the deadliest, but there were others. Their collective purpose was to “bleed India” until Delhi surrendered IoK to Islamabad. Pre-9/11, the collaboration was overt. LeT and other jihadi groups recruited fighters throughout Pakistan, but particularly from southern Punjab. They launched hundreds of guerilla attacks on Indian soldiers and civilians and fought alongside the Pakistani army in the 1999 invasion of Kargil, the last time the two armies went head to head inside Indian Kashmir.

In December 2001, India charged LeT with attacking its parliament in Delhi, bringing the two countries to the brink of nuclear war. Under American pressure, General Pervez Musharraf, Pakistan’s then-military dictator, banned the LeT and other jihadi groups. Moves against the militants in 2002 seemed like bluffs at the time. In fact, they were the beginning of a slow change. Steered by Washington, Islamabad and Delhi went from nuclear brinkmanship to a truce across the armistice line in Kashmir. In 2004, Musharraf began a peace process or “composite dialogue” with India predicated on the oath “not to permit any territory under Pakistan’s control to be used to support terrorism in any manner.” What had commenced as a feint by Pakistan’s military establishment was hardening into policy.

The ISI demobilized thousands of jihadi fighters in Pakistani-occupied Kashmir (PoK). Some of their camps were moved inland, including, ironically, to the Swat Valley. Six army divisions (about 80,000 to 100,000 men) were repositioned from the eastern border with India to the western border with Afghanistan, where the army was becoming embroiled in its first clashes with the Pakistan Taliban. Under the command of General Ashfaq Kayani (now army chief of staff), the ISI was reformed, with the more Indo-phobic and jihadi officers purged. Guerilla infiltration into IoK slowed to a trickle.

Some of the army’s senior officers believed that because both Pakistan and India had become nuclear powers, hot war was no longer an option. More importantly, many generals were convinced that the army would not be able to preserve its preeminent position in the Pakistani state or defend its enormous corporate interests in the economy without sustained growth which would require peace with India. Musharraf was the leading proponent of this new thinking. In 2004, he authorized Khurshid Kasuri, the civilian foreign minister at the time, to open “back-channel” negotiations with India on a possible settlement for Kashmir, one that would in essence give Islamabad an honorable exit from what had become an unwinnable war.

Over the next three years a deal took shape: Demilitarization would neutralize the two Kashmirs, open borders would unite them, and a form of self-government or autonomy would partly satisfy the Kashmiri aspiration to self-determination. The army agreed to the nucleus of this draft agreement with the proviso that the Kashmiris vote on it. “This was to allow the army to give up historic positions without appearing to,” said Hasan Rizvi Ashkari, a military historian.

The back channel ran aground in the storm that wrecked Musharraf after his illegal sacking of Chief Justice Iftikhar Chaudhry in March 2007. Many fear that the attacks in Mumbai may have sunk prospects for a Kashmir agreement forever. But the progress of the discussions had suggested that the military was open to a resolution and had taken steps in that direction. “When the Kashmir camps were initially dispersed, the boys [fighters] were told that it was just a temporary measure because of 9/11,” a senior jihadi leader told the BBC in 2008. “Then the arrests and disappearances started. The boys realized fundamental changes were underway and quietly slipped away beyond the control of the Pakistani authorities.” This is what happened in the Swat Valley where jihadi cells joined forces and lent enormous firepower to local Islamist groups demanding shari‘a law. The pattern was repeated in the southern Punjab and Islamabad.

Police paramilitaries in downtown Srinagar during a city shutdown called by separatists. (Liz Harris)

Deprived of support from their old (state) godfathers, the “youngest and most radicalized members” were drawn to new groups, says historian Ahmed Rashid. They “joined up with al-Qaeda and the Pakistan and Afghan Taliban in the tribal areas on the border with Afghanistan. They embraced the global jihad to fight US troops in Afghanistan and Iraq, and later attacked the Pakistan government.” Rashid believes this al-Qaeda, Taliban and jihadi nexus is the motor driving much of the violence that has rocked Pakistan, Afghanistan and India in recent years, including Mumbai, the assassination of former Prime Minister Benazir Bhutto in December 2007, and the recent wave of attacks in Pakistani cities.

In other words, after 2004 many LeT and other jihadi cadres ceased focusing their militancy exclusively on India or Kashmir. They fragmented and morphed into multiple cells with ties to al-Qaeda and other Pakistani Sunni sectarian groups, sometimes acting in alliance, sometimes autonomously, but together having an outreach that included Afghanistan, Pakistan, Bangladesh, India, Kashmir, Iraq, Europe and beyond. The ISI was loath to cut ties with groups over which it did maintain some sway, like the old LeT-JuD nexus. Nor was the ISI inclined to abandon entirely the proxy war strategy in IoK before a settlement had been reached. “If we did that, Kashmir would go cold and India would bury it forever,” said a senior army general in 2005.

IoK has warmed. In 2008 there were 41 militant infractions across the armistice line, double the 2007 total. The upward curve has continued in 2009, with several skirmishes between the two armies. For the first time since 2004, LeT cadres have publicly surfaced in the southern Punjab, proselytizing for jihad. Seminaries and schools are acting as recruiting centers, with the traffic in students moving in both directions between the Punjab and the tribal areas. Funerals in both provinces eulogize “martyrs” in Kashmir and Afghanistan.

None of this could happen without the knowledge of the ISI. Militant activity increased in the twilight between the end of Musharraf’s military rule and Pakistan’s new civilian government. Yet the new militancy seems to have little to do with the mass demonstrations for independence that shook IoK in the summer of 2008, or with insurgent violence there, which remains low. It has more to do with Afghanistan or, more precisely, with India in Afghanistan.

India’s Regional Dominance

Pakistan has been worried by India’s widening footprint in Afghanistan since the Bonn conference in November 2001, where Afghan factions came together to determine their country’s post-Taliban future. The Afghan Taliban was purged from any interim government headed by Hamid Karzai, and replaced by forces loyal to the Northern Alliance (NA). The NA had opposed the Taliban regime before 9/11 and fought with US troops to topple it. India, Iran and Russia were its main sponsors; Pakistan and Saudi Arabia supported the Taliban. Neither the Taliban nor Islamabad was invited to Bonn. “This was our original sin,” said Lakdar Brahimi, the UN’s envoy in Afghanistan, who chaired the conference.

India remains one of Karzai’s few champions. And Afghanistan is seen to be very much within Delhi’s sphere of regional influence. India has four consulates and has given the Afghan government $1.2 billion in aid: a huge investment for a country that is 99 percent Muslim and with which India shares no border. Delhi has built the new national parliament in Kabul, runs the Afghan electricity and satellite systems and has helped train its army and intelligence forces, the latter staffed by many ex-NA commanders.

India’s most ambitious Afghan project is a new highway, routed across the western border to the Iranian port of Chabahar, that circumvents landlocked Afghanistan’s need to use Pakistani ports to the Gulf; Islamabad deems these trade and energy corridors vital to its economic future. For the Pakistan army, the highway’s importance is clear: India seeks to consolidate an alliance with Iran in western Afghanistan to counter Pakistan’s influence in eastern Afghanistan. This is a continuation of the pre-9/11 war in a post-9/11 infrastructure, with India, Iran and the Karzai government on the one side, and Pakistan and the Afghan Taliban on the other. “The army feels under siege,” says Ayesha Siddiqa, a military analyst.

In 2004, the Bush administration tilted US South Asia policy toward Delhi, lured by the size of India’s markets and its potential role as a strategic “counterweight” to China, Pakistan’s closest regional ally. In 2008, the US signed an agreement that allows India to buy civilian atomic technology, including nuclear fuel, from American firms, even though Delhi is not a signatory to the non-proliferation treaty. Pakistan was granted no such privilege; on the contrary, it is denounced as a rogue for developing the bomb by stealth and for the proliferation activities of its former top nuclear scientist, A. Q. Khan. Some in Congress want aid to Pakistan tied to US access to Khan for questioning.

For all the fabled “chemistry” between Bush and Musharraf, since 9/11 Washington has treated Islamabad as a gun for hire, providing certain weaponry and around $2 billion a year in exchange for securing supply lines for US and NATO forces in Afghanistan and for fighting the Taliban and al-Qaeda in the tribal areas. By cooperating in these ways, the army may have hoped that its interests would be taken into account in the post-invasion reconstruction. Yet unlike Iran or India—and despite the services or sacrifices rendered—Islamabad was given no say in the formation of the Afghan government or in its nascent military forces. This strengthened Pakistani perceptions that Musharraf and his army were mercenaries fighting “America’s war.” The Taliban, by contrast, were deemed Afghan or at least Pashtun nationalists resisting a foreign, colonial and anti-Muslim occupation.

These realities help explain the army’s selective counterinsurgency in the tribal areas. In Bajaur, Mahmond and to a lesser extent South Waziristan, the army has often been ruthless in campaigns against the Pakistan Taliban. This is partly revenge for the killing of Pakistani soldiers. But there is also the perception (and, the army insists, evidence) that “Pakistan’s enemies” are fomenting the militancy. A commander in Bajaur says many of those captured or killed by the army are Afghans, including Tajiks or Uzbeks, while the tribal areas are almost exclusively Pashtun. The inference is obvious. Some “insurgents” are “agents” working for Afghan intelligence and/or India.

In North Waziristan, on the other hand, the preferred policy is to negotiate ceasefires with tribal militants who openly provide fighters and arms to Afghan Taliban commanders like the Haqqanis. Unlike the Pakistan Taliban, these tribal militants do not attack the Pakistani army other than to avenge US drone attacks. “They’re our people; they’re not our enemies,” says an ISI officer.

A Pakistani analyst—who declined attribution—says these dual policies explain the enigma of the Pakistan army. It will act against those who threaten the state, such as the Taliban in Swat and al-Qaeda-linked militants elsewhere. But it will not act against those who, like the Afghan Taliban, seek only a haven from which to fight American and NATO troops in Afghanistan. In fact, “The ISI has retained its links to the Afghan Taliban because it wants to use them as a bargaining chip in Afghanistan,” says the analyst. “The Pakistan army wants to have a bigger say in whatever new regional dispensation America is planning. The view within the army and ISI is if the Afghan Taliban is abandoned, this would strengthen the Afghan government, as well as India in Afghanistan, at Pakistan’s expense.”

A Fork in the Road

Prior to his election, Barack Obama was clear on the link between peace in Kashmir and war in Afghanistan. “If Pakistan can look towards to the east with confidence, it will be less likely to believe its interests are best advanced through cooperation with the Taliban,” he wrote in Foreign Affairs in 2007. Ensconced in the Oval Office, the president now dismisses Islamabad’s focus on Delhi as paranoia. “The obsession with India as a mortal threat to Pakistan is misguided [because] their biggest threat right now comes internally,” he said in April 2009.

The shift seals a “new” American policy toward Pakistan that marks more continuity than change with Bush’s second term. Under Obama, US drone attacks into the tribal areas—inaugurated by Bush—have continued and may be extended to other areas of Pakistan. Whatever good will Obama hoped to generate through increases in civilian aid has been wiped out by the increase in Pakistani deaths by American rockets.

The Pakistan aid bill before Congress, although promising a “deeper, broader, long-term engagement with the [Pakistani] people,” could be as conditional as anything tendered by Bush. Military aid is not to be tied only to fighting the Taliban and al-Qaeda but may require Pakistan’s pledge not to support “any person or group that conducts violence, sabotage or other activities meant to instill fear or terror in India.” Some members of Congress want aid to Pakistan linked to moving troops from the eastern border with India to the western border with Afghanistan.

American policy towards Kashmir also reveals India’s widening influence in Washington. In an intensive lobbying effort, Delhi made clear to Obama that his envoy would be shunned if any link were made between Kashmir and Af-Pak. It worked. In a trip to Islamabad in April, Holbrooke refused to even say “Kashmir.” And while in Delhi, he was effusive about India’s “critical role” in the region without which “we cannot settle Afghanistan and many other world problems.” The implication was that Kashmir, clearly, is not among them.

This Indian-American axis presents Islamabad with a fork in the road. One way goes back. The ISI again could try to bleed India via surrogates in Afghanistan and Kashmir in the hope that its regional concerns will be addressed, above all a final status for Kashmir and recognition of its western border with Afghanistan. But such a strategy would likely fail; pursuing foreign policy objectives through guerilla violence rarely worked in the past. It simply creates conditions of friction that al-Qaeda, the Taliban and jihadi groups can exploit to keep 80 percent of Pakistan’s military manpower and hardware pinned down on India rather than on them or the tribal areas. Mumbai and the Taliban’s conquest of Swat are two examples of just how useful a diversion this can be.

The alternative is to go forward and insist that Kashmir, Afghanistan and Islamic militancy are regional problems requiring regional solutions. India is right to insist that Pakistan go after those nationals and groups implicated in Mumbai and other attacks in India with the same vigor as it is currently going after the Pakistan Taliban in Swat. But equally Delhi must recommence serious negotiations to resolve Kashmir and other outstanding water and land disputes with Islamabad.

On such bases Pakistan and India could come together to agree to terms for coexistence in a neutral and neutralized Afghanistan. For economic, energy and geopolitical reasons, both nations have an interest in their roads crossing in Kabul. But the road must start in Kashmir.